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--> --> A legal notion fashioned of peach fuzz By James J. Kilpatrick Let us imagine Supreme Court Justice Anthony Kennedy in a Greyhound bus. Too much? Then how about Chief Justice William Rehnquist in a Greyhound bus? Does the mind boggle? The mind reels. At least a few minds were left to boggle and reel last month when the high court handed down its 6-3 opinion in U.S. v. Drayton. This was a Fourth Amendment case. Kennedy's opinion added little to the case law, but it served beautifully to illustrate the gulf that separates the marbled halls of One First Street from the linoleum world outside. Kennedy began by explaining that the Fourth Amendment "permits police officers to approach bus passengers at random to ask questions and to request their consent to searches." Then he added an afterthought - "provided a reasonable person would understand that he or she is free to refuse." Who are these reasonable persons? Who are these brave and educated people who understand their Fourth Amendment right to refuse? Why, sir, they are professors of constitutional law. Or defense lawyers. No one else is likely to refuse a request from three armed cops. These were the facts: In February 1999, Christopher Drayton and Clifton Brown Jr. were passengers aboard a Greyhound bus traveling from Fort Lauderdale, Fla., to Detroit. The bus stopped in Tallahassee for cleaning and refueling. Everybody got off. When the passengers reboarded, the driver collected their tickets and disappeared into the terminal, whereupon Tallahassee Officers Lang, Hoover and Blackburn came aboard. Officer Hoover knelt on the driver's seat and faced the rear of the bus. Officer Blackburn went to the back of the bus and stayed there. Officer Lang began moving up the narrow aisle, questioning passengers one by one. Drayton and Brown were now in this position: They had one cop in front of them, one cop behind, and one cop in their face. Lang asked if he could check their bag. Brown said, "Go ahead." The bag contained no contraband. Then Lang noted that the suspects were wearing bulky clothing. Would Brown consent to a search? He said, "Sure." The officer patted him down, chest and thigh. He detected "hard objects similar to drug packages detected on other occasions." A clue! Lang arrested and handcuffed Brown. Then he accorded Drayton similar courtesies. The officers confiscated 778 grams of cocaine. Federal authorities charged the men with possession with intent to distribute. The U.S. Court of Appeals for the 11th Circuit granted the defendants' motion to suppress. The government appealed. The Supreme Court reversed and sent the case back for trial. Said Kennedy: "The officers gave the passengers no reason to believe that they were required to answer their questions." The cops did not brandish their weapons or make intimidating movements. Indeed, they left the aisle free so that respondents could exit. "Nothing would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter." Ho, ho, ho, and call the Tooth Fairy to the stand! Not one person in a hundred thousand is going to say "no" to three armed cops. Justice David Souter, sensibly dissenting, said Kennedy's opinion had "an air of unreality." He found it hard to imagine that Brown and Drayton had any free choice in the matter. The officers had created "an atmosphere of obligatory participation." In asking the passengers for their "cooperation," the officers left an unmistakable inference of "cooperation or else." No reasonable passenger would have felt free to leave - especially since the bus driver still had the tickets. Kennedy's opinion was a bummer. A large body of case law, running from Terry v. Ohio in 1968 to Florida v. Bostick in 1991, teaches that officers may detain an individual only if they have a reasonable, articulable suspicion that criminal activity is occurring or is about to occur. The fact that Drayton and Brown were wearing bulky clothing in February, even in Florida, seems to me far short of probable cause to search an unoffending citizen. And the notion that the defendants "voluntarily" submitted to search is a notion fashioned of peach fuzz and horsefeathers - horse something, anyhow. The evidence should have been thrown out. James J. Kilpatrick is a nationally syndicated columnist. Email your... Technical questions & comments to: WebMaster Daily Tidings editorial comments & questions to: Editor Visit our other Oregon Newspapers... | Albany Democrat-Herald | Ashland Daily Tidings | Corvallis Gazette-Times | | Lebanon Express | Newport News-Times | Springfield News | Cottage Grove Sentinel | Ashland Daily Tidings 1661 Siskiyou Blvd. Ashland, OR 97520 Telephone 541-482-3456 © Copyright 2001 Lee Northwest Publishing